We believe that the oath of office was administered effectively and that the president was sworn in appropriately yesterday. But the oath appears in the Constitution itself . . . [a]nd out of an abundance of caution, because there was one word out of sequence, Chief Justice Roberts administered the oath a second time.

Because Democratic liberalism tends to eschew inconvenient constitutional boundaries (such as the actual words of the Constitution), it seems almost ironic that President Obama would be so concerned about the precise order of the words in the Constitution that he would re-take the oath the next day, just to make sure he got it right. Nonetheless, I think this will probably be one of the president’s only homages to textual originalism. The ever-increasing talk of vacancies on the Supreme Court have me concerned that four years from now, the Court will contain one or two more constitutional mavericks.

Certainly the outcome has substantive impact. If the court decides that Proposition 8 was passed in an unconstitutional manner, it becomes a nullity and California returns to being the second of these United States to allow homosexual mariage by judicial pronouncement. There are, however, some interesting sub-plots that get lost in the shuffle.

First, if the court does rule that Prop 8 is unconstitutional, it would render moot any federal case arguing that Prop 8 violates the 14th Amendment to the federal Constitution. In my mind, this is the “big fish” argument. I have written previously on the evolution of the 14th Amendment and how the United States Supreme Court has a long history of taking a results-oriented approach to its interpretation. One can see the “ramp up” to the infamous Roe v. Wade decision in prior cases dealing with government intrusion into marriage and procreation. There has been a similar ramp-up over the past several years regarding the issue of homosexuality on society. The Supreme Court has issued decisions striking down sodomy laws in all 50 states and has held that states cannot make constitutional amendments excepting “sexual orientation” from classes protected from employment discrimination.

All this means that the time is ripe for a Supreme Court decision stating that states cannot prohibit homosexuals from marrying if they wish. The interplay between Prop 8 and the 14th Amendment looks to me like the perfect battleground for such a decision. But if the California Supreme Court overturns Prop 8, it would make the federal question moot and non-justiciable. A California victory for homosexual marriage proponents could come at the expense of a federal coup d’état.

My second observation is that there is a considerable ideological overlap between the people who want the California Supreme Court to overturn the results of a popular election and the people who, for the last 8 years, have mercilessly ridiculed Justice Scalia and the United States Supreme Court for usurping a popular election and declaring George Bush the winner of the 2000 election. For over 8 years, the accusation has come from liberal corners that the Supreme Court should not have gotten involved in the democratic process by halting the recount and that the will of the people should have been given paramount importance. Now, from those same corners, we are hearing that the will of the people of California should not be recognized and that the state Supreme Court should step in and invalidate the results of a popular vote. This is certainly inconsistent, if not downright hypocritical.

So what do you think? Will the California Supreme Court strike down Prop 8? Can you see the United States Supreme Court mandating homosexual marriage throughout the country? When should courts substitute their own notions of morality for the will of the people?

The Roe majority based its holding on several morally bankrupt positions: the rejection of prenatal personhood, the ignoring of any interests of the unborn, and the arbitrary dictate that an individual’s bodily autonomy is a superior interest to a state’s interest in protecting innocent life.

First, the Roe majority engaged in a lengthy inquiry into when life begins and whether or not a “fetus” is a person. The Court begins by acknowledging that the personhood of a fetus is a dispositive question, for a fetus’ right to live is guaranteed by the Fourteenth Amendment if he is indeed a person. The Court summarily dismisses the possibility of personhood by concluding that since the usage of “person” in the Constitution does not have any explicitly prenatal application, it must not have any prenatal application at all.

The Court, having rejected the personhood of the unborn, then takes up the issue of when life begins, concluding essentially that it does not matter one way or the other. The very way in which these questions were considered indicates an oft-ignored dichotomy between personhood and human life that should cause the astute observer to peer into history and recall the last time the Supreme Court engaged in such semantic gymnastics. By refusing to opine on when life begins and instead acknowledging the possibility that life begins at conception, the Court allows for the existence of an entire class of living human beings that are nonetheless not people desiring of the law’s protection. This smacks heavily of the now-universally reviled logic embodied in Dred Scott v. Sandford. By holding that the Constitution uses “person” and “citizen interchangeably” and yet denying all blacks the rights of citizens, the “Dred Scott Decision” stood for the proposition that an entire class of human beings are nonetheless not people. The logic of Roe is identical. By treating the questions of personhood and life separately and by passing on one question and not the other, the Supreme Court again held that an individual’s humanity alone is insufficient to bestow upon him fundamental civil rights – in this case, the right not to be slaughtered.

Secondly, Roe‘s famous holding includes a sliding scale accounting for a woman’s interest in boldily autonomy and the state’s interest in protecting unborn life. Notably absent from the calculus is any indication of a right to live on the part of the unborn. Perhaps the question is rendered moot by the Court’s rejection of prenatal personhood (non-people must not have any legitimate, court-protected interests), or maybe the Court assumed that the state would adequately represent the interests of the unborn. Yet it strikes this writer as morally reprehensible that the highest Court in the land could grant the possibility that a state may have a legitimate interest in protecting even “potential” life while simultaneously ignoring the possibility that the unborn child might have a legitimate interest in not being killed. The reason is relatively clear: it would be impossible to account for such an interest in a sliding scale. When would one individual’s interest in bodily autonomy trump another’s interest in life? Never.

Lastly, the Court’s broad holding, the aforementioned sliding scale, is as arbitrarily applied as it is arbitrarily fabricated. As decided, Roe held that states cannot restrict abortion in the first trimester, they may regulate it in the second only insofar as it is reasonably related to protecting the health of the mother, and may regulate it to the point of total prohibition (except to preserve the life of the mother) in the third trimester. This shift at the third trimester occurs, according to the Court, because this is the point of fetal viability when the fetus could survive on its own outside the mother’s body. It is at this point that the state’s interest in protecting the child’s life suddenly outweighs the mother’s interest in bodily autonomy.

One of the many troubling aspect of this scheme is the fact that the Court’s logic would equally support the opposite conclusion. For example, if the fetus has reached the point of viability, it could be considered capable of protecting its own interests in preserving its life without the need for state intrusion. The Court could just as easily have concluded that at the moment of conception, the state’s interest in protecting fetal life vastly outweighs the mother’s interest in bodily autonomy since the unborn child is at that point in time most needing of protection and the mother’s bodily autonomy is only minimally invaded. As the pregnancy progresses, it becomes more and more of a limitation on the mother’s autonomy and the child becomes stronger and stronger. At some point then, the lines cross and the mother’s autonomy becomes a more compelling interest than the state’s interest in protecting the child’s life and the mother can have the fetus “evacuated” if she so chooses.

The purpose of this opinion is not to argue for the above-suggested approach as it is as equally reprehensible as the one the Court gave us. Rather, the point is that Roe and the cases based on it are based on unsound legal and logical principles and are therefore arbitrary. Like the compassionate people of the 19th century, we look forward to the day when Roe v. Wade is as ineffectual and universally hated as Dred Scott is today.

As applied, the hierarchy of levels consists of three increasingly strict standards the state must meet to Constitutionally infringe on certain rights of certain individuals depending on whether those individuals trigger these heightened review standards. For example, we all know that a state may only discriminate on the basis of race if it has a “compelling” interest to which its discriminatory action is “narrowly tailored.” In other cases, the state need only show a “rational basis” for its action. In the middle and usually used in sex discrimination cases, a state’s action must be “substantially related” to an “important” state interest.

Obviously, these criteria are found nowhere in the Constitution or its amendments; they have been judicially fabricated over time. The the Constitution does not restrain the Court in creating this system, neither does it restrain the Court in applying or interpreting it. Moreover, while a great deal of time is devoted to understanding why the Court applies a given level under the facts of a particular case, that inquiry typically overshadows the other essential consideration: whether the facts of the case meet that standard. Put another way, while the Court has given us guidance regarding the sorts of plaintiffs that may trigger heightened levels of review, we have comparatively little guidance (and certainly not a rule) for determining what kinds of state actions satisfy such levels. We do have examples in the case law, but an example is the least efficient sort of explanation.

As a result, the Court often employs an impressive legal analysis in determining the appropriate level of review while then concluding as a matter of opinion whether or not that level is satisfied. This means that the Court can come to a conclusion on the merits of the case based solely on personal opinion (often involving social issues), then author an opinion that includes a scholarly analysis of the appropriate level of review that itself places no real constraint on the ultimate holding. In short, whether a given stat action satisfies the requisite level of review is merely a matter of divine fiat.

In my own Constitutional Law class, I was castigated for drawing attention to this fact in a hypothetical involving state funding for a museum featuring the artwork of minority artists. After the class had settled on an appropriate level of review, I was asked whether the state’s plan satisfied it. I suggested it didn’t. When asked why, I responded that “it just doesn’t.” This drew the ire of the professor who felt that my response was not sufficiently supported. My point was that neither are the responses of the Supreme Court.

A real world example should illustrate the same essential logic on the part of the Court. In Korematsu v. United States, the Supreme Court applied the highest “strict scrutiny” review to the enforcement of a military order excluding Japanese-Americans form their own homes. The majority held that national security satisfies the highest level of review and the military order therefore did not violate the plaintiff’s Constitutional rights. In dissent Justice Murphy opined that the government need only show a “rational basis” for its actions, then concluded that the government could not even satisfy this lowest standard. The majority held that the state satisfied the highest standard and the dissent said that the government could not even satisfy the lowest. The rationale used by both justices was based on their a fortiori opinions of the danger posed by the presence of Japanese-Americans, not on any recognizable legal principles, and certainly not on anything contained in the Constitution.

The evolution of this trend can be seen is cases such as Romer v. Evans, in which the Court held that an amendment to a state constitution did not meet the rational basis test, offering as support nothing more than a gross mischaracterization of the effect of the amendment. This indicates that the Court’s holding was based on previously-formed opinions of the social issue implicated in the case, since the supposed effects of a state action do not bear on whether the state had a “rational basis” for implementing the action in the first place. In short, the Court’s outrage was irrelevant to the question it was answering. The holding was a function of judicial fiat, not the application of legal principles.

Yet more examples can be seen where alienage is the ground for a Fourteenth Amendment claim. In Sugarman v. Dougall, the Court applied “close judicial scrutiny” to a law precluding non-citizens from civil service positions. Holding that the law did not meet the necessary close scrutiny, the Court’s rational was conclusory. In essence, the law wasn’t narrowly tailored because it wasn’t narrowly tailored enough. Likewise, in Plyler v. Doe, the Supreme Court held unconstitutional a Texas statute requiring non-citizens to pay tuition in order to receive public education. In this case, the Court’s results-oriented approach was so egregious that Justice Burger explicitly drew attention to it in his dissent.

This judicial environment has come to exist because the Court has bitten off more than it can legally chew. These sorts of cases before the Supreme Court were never contemplated by the framers nor are they based in the text of the Constitution or its amendments. While it is certainly understandable that the Court would need to invent a procedure for cases it was never meant to hear, the procedure we have is extremely volatile and unpredictable. Deciding social issues using a procedure that is ultimately based on the whims of whoever happens to be on the bench will result, as we have seen, in an ever-shifting foundation for such cases. Since the Court’s rulings on social issues often work the result of completely removing those issues from the democratic process, it is all the more imperative that the Court be constrained by solid and predictable legal principles. Otherwise, we are constantly left to wonder how the Court might rule on this issue or that.

A significant segment of the population casts its ballots in presidential elections based primarily on the anticipation of Supreme Court appointments and it’s not because America is concerned with the Court’s application of RICO statutes. It’s because we know that the Court’s self-delegated substantive due process jurisprudence has transformed it from the branch that was designed to be insulated from the political process into the most powerful political body in the nation.

The 2nd Appellate Court in Los Angeles recently handed down a decision that required the home-schooled children in at least one family to be enrolled in a government school or a government-approved private school. Of course, the reasons are fairly transparent. The only reason for government to become this involved in education is to have a say in what children are taught. WorldNetDaily points out that the court’s ruling sounds similar to education officials in Germany, whose mandatory government education laws have been on the books since Hitler put them there in 1938 in order to indoctrinate Germany’s children with Nazi ideals.

In this case, the indoctrination taking place isn’t as simple as Nazism; it’s the new liberal fascism. California Senate Bill 777 was passed by the legislature several months ago and it requires government schools to offer only positive portrayals of homosexuality, bisexuality, transsexuality, and such-like. This makes California the most “progressive” state to date, mandating that in government schools, any opinion is acceptable as long as it isn’t biblical Christianity.

Against this backdrop, the court’s reasoning behind the ruling that homeschool children must be given a government-provided or government-regulated education is particularly startling:

[K]eeping the children at home deprived them of situations where (1) they could interact with people outside the family, (2) there are people who could provide help if something is amiss in the children’s lives, and (3) they could develop emotionally in a broader world than the parents’ ‘cloistered’ setting.

Point #1 is clearly a red herring since it is well established that homeschool children generally are more socially mature than their government schooled counterparts. Point #2 is also curious and I would like to see the full opinion to see what the court was talking about. But point #3 really strikes at the heart of the issue.

“[T]hey could develop emotionally in a broader world than the parents’ ‘cloistered’ setting.” The language implies that children should develop emotionally in a setting other than what their parents are providing. Given the backdrop of SB777, the fact that the children’s father said, “I don’t want to put my children in a public school system that teaches ideologies I don’t believe in,” and the fact that the court held that “sincerely held religious beliefs” don’t extend the 1st Amendment to cover the education of children, it’s pretty clear what the court wants the children to learn.